Hickory Creek Special Utility District and the Following Persons in Their Official Capacities as Officers and Members of the HCSUD Board of Directors, Brad White, Boyd Roberts, Tammy Cross, Brandon Lamm, Frances Caplinger, Phillip George, and Kevin Richey v. Henry Mastellar

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana

No. 06-25-00040-CV

HICKORY CREEK SPECIAL UTILITY DISTRICT AND THE FOLLOWING PERSONS IN
THEIR OFFICIAL CAPACITIES AS OFFICERS AND MEMBERS OF THE HCSUD BOARD
OF DIRECTORS, BRAD WHITE, BOYD ROBERTS, TAMMY CROSS, BRANDON LAMM,
FRANCES CAPLINGER, PHILLIP GEORGE, AND KEVIN RICHEY, Appellants

V.

HENRY MASTELLAR, Appellee

On Appeal from the 336th District Court
Fannin County, Texas
Trial Court No. CV-24-46917

Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Justice Rambin
MEMORANDUM OPINION

This is an interlocutory appeal and cross-appeal from the trial court’s ruling on a plea to

the jurisdiction filed by Appellants, Hickory Creek Special Utility District (Hickory Creek) and

its board of directors (the HC Board).1 In resolving the appeal, we construe an easement granted

by Appellee Henry Mastellar to Hickory Creek for the purpose of providing water services.

Seven years after Hickory Creek provided water services to Mastellar, Hickory Creek entered

onto Mastellar’s property again to tap into the existing water line and provide service to a

neighbor. Mastellar sued Hickory Creek for inverse condemnation, among other claims. The

trial court granted, in part, and denied, in part, the plea to the jurisdiction, and each party

appealed the portion of the trial court’s ruling contrary to its position. We affirm.

I. Background

In late 2016, Mastellar and his wife contracted for water service to their rural property

located in Fannin County, Texas, to be provided by Hickory Creek. Hickory Creek is a

governmental entity created as a Special Utility District under Title 4, Chapter 65, of the Texas

Water Code. The Mastellars executed a Service Application and Agreement (Service

Agreement) in December 2016, and the Mastellars granted an easement to Hickory Creek in

February 2017 (Easement Agreement).

The Service Agreement included a provision referencing future easements, which stated:

The Customer shall grant to the District, now or in the future, any easements of
right-of-way for the purpose of installing, maintaining, and operating such
pipelines, meters, valves, and any other equipment which may be deemed

1
The HC Board consisted of Brad White, Boyd Roberts, Tammy Cross, Brandon Lamm, Frances Caplinger, Phillip
George, and Kevin Richey.
2
necessary by the District to extend or improve service for existing or future
Customers . . . .

On the Service Agreement, Mastellar bracketed the above paragraph and handwrote above it:

“HBM [Mastellar’s initials] SPECIFIC EASEMENT NOT BLANKET EASEMENT.” Mastellar

and his wife executed the Service Agreement in December 2016, and Hickory Creek approved

and accepted it on February 10, 2017.

Also on February 10, Mastellar and his wife executed the Easement Agreement, which

included the following provisions:

[The] . . . “Grantor” for the provision of utility service . . . does hereby covenant
access to and grant, sell, and convey unto HICKORY CREEK SPECIAL
UTILITY DISTRICT . . . an exclusive easement and right-of-way in, into, upon,
across, and under the property described as A061 M MORGAN ACRES, 44.64
ACRES CR 4876 . . . .

The right-of-way, easement, rights and privileges herein granted shall be
used for the express purpose of providing water utility service including placing,
installing, constructing, operating, repairing, inspecting, rebuilding, removing,
and relocating water lines, transmission or distribution facilities or equipment,
other utility lines, as well as reading any meter or performing any act related to
the provision of the utility service. Hickory Creek SUD is specifically granted
pedestrian, equipment and vehicular ingress and egress.

The width of the easement shall be 20 feet, preferably one-half (1/2) such
distance on either side of Hickory Creek SUD’s lines, or other facilities, and shall
include the subsurface below and the space above, more specifically described as:
[with a horizontal line drawn in the blank provided for the specific description].

In April 2024, without contacting Mastellar, and for the purpose of tapping into the

existing water line and providing service to Mastellar’s neighbor, Hickory Creek, according to

Mastellar,

(a) removed a gate from its hinges located on the opposite side of [Mastellar’s]
Property, away from the [existing] water pipeline; (b) damaged the fence, which
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is now unusable and needs to be replaced; and (c) drove many heavy vehicles and
machines across [Mastellar’s] Property, thereby making ruts and damaging
[Mastellar’s] Property and the coastal hay he was to harvest.

Mastellar sued Hickory Creek, claiming the installation of the additional water line was

not authorized under the Service Agreement or the Easement Agreement and that he had not

consented to the waterline’s installation. Mastellar argued that neither the Service Agreement

nor the Easement Agreement allowed Hickory Creek to extend or change the boundaries of the

twenty-foot easement around his water line or to use any portion of his property to provide

services to other properties absent the granting of an additional easement.

Mastellar brought five causes of action: (1) a suit for declaratory and injunctive relief

based on ultra vires acts taken by the HC Board, (2) inverse condemnation against Hickory

Creek, (3) a suit for declaratory and injunctive relief against Hickory Creek based on violation of

the agreements, (4) breach of contract against Hickory Creek, and (5) violation of the Texas Tort

Claims Act (TTCA) against Hickory Creek in the form of negligence arising from the use of a

motor-driven vehicle.

Hickory Creek and the HC Board responded with a plea to the jurisdiction and motion to

dismiss. With respect to Mastellar’s declaratory judgment causes of action, the HC Board

contended it did not commit any ultra vires acts, and Hickory Creek argued Mastellar cannot ask

the trial court to determine the parties’ rights under a contract that is unenforceable due to

sovereign immunity. Hickory Creek argued Mastellar’s inverse condemnation claim fails

because there was neither damage nor a “constitutional taking.” Finally, Hickory Creek asserted

Mastellar’s TTCA claim was barred because it did not adequately allege a negligence claim.

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Based on their plea to the jurisdiction, Hickory Creek and the HC Board moved to dismiss

Mastellar’s case.

The trial court held a non-evidentiary hearing on Hickory Creek and the HC Board’s plea

to the jurisdiction. After the hearing, the trial court issued an order granting, in part, and

denying, in part, their plea to the jurisdiction. The trial court granted their plea to the jurisdiction

on both of Mastellar’s requests for declaratory and injunctive relief and his cause of action for

breach of contract and dismissed those causes of action. The trial court denied their plea to the

jurisdiction on Mastellar’s causes of action for inverse condemnation and violation of the TTCA.

Hickory Creek and Mastellar appealed the interlocutory order under Section 51.014 of

the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 51.014(a)(8) (Supp.).

II. Standard of Review

“Whether a court has subject matter jurisdiction is a question of law we review de novo.”

Tex. Disposal Sys. Landfill, Inc. v. Travis Cent. Appraisal Dist., 694 S.W.3d 752, 757 (Tex.

2024) (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)).

III. Sovereign Immunity and Pleas to the Jurisdiction

“Sovereign immunity, unless waived, shields the state from lawsuits for damages.”

Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 476 (Tex. 2012). Special Utility

Districts are “one of thirteen different types of general law water districts acting as state political

subdivisions,” Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829, 835 (Tex.

2010) (citing TEX. WATER CODE ANN. §§ 50–68), and “[a]s such, they enjoy governmental

5
immunity from suit, unless immunity is expressly waived,” id. at 836 (citing Reata Constr. Corp.

v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006)); see Baylor Cnty. Special Util. Dist. v. City

of Seymour, 709 S.W.3d 5, 14 (Tex. App.—Eastland 2025, pet. filed).

“Immunity from suit may be asserted through a plea to the jurisdiction . . . .” Alamo

Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). “[P]leas to the jurisdiction

may involve competing evidence, the denial of any probative evidence, or the assertion that the

law compels a result regardless of the evidence.” City of Austin v. Powell, 704 S.W.3d 437, 447

(Tex. 2024). “The foundational rule in all cases is that ‘[a] party suing the governmental unit

bears the burden of affirmatively showing waiver of immunity.’” Id. (alteration in original)

(quoting City of San Antonio v. Maspero, 640 S.W.3d 523, 528 (Tex. 2022)). “There is ‘a

presumption against any waiver until the plaintiff establishes otherwise.’” Id. (quoting Rattray v.

City of Brownsville, 662 S.W.3d 860, 866 (Tex. 2023)). “The plaintiff—the nonmovant—

survives the plea to the jurisdiction only by showing that the statute ‘clearly and affirmatively

waive[s] immunity’ and by also ‘negating any provisions that create exceptions to, and thus

withdraw, that waiver.’” Id. (alteration in original) (quoting Rattray, 662 S.W.3d at 867).

“In reviewing a grant or denial of a plea to the jurisdiction, we determine whether the

plaintiff’s pleadings, construed in favor of the plaintiff, allege sufficient facts affirmatively

demonstrating the trial court’s jurisdiction to hear the case.” Hearts Bluff, 381 S.W.3d at 476.

“If evidence central to the jurisdictional issue is submitted, it should be considered in ruling on

the plea to the jurisdiction.” Id.

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IV. Analysis

Through their appeals, the parties urge error with respect to each of the trial court’s

determinations against them. That is, Hickory Creek complains that the trial court erred in

denying its plea to the jurisdiction on Mastellar’s inverse condemnation and TTCA claims.

Mastellar asserts on cross-appeal that the trial court erred in granting the plea as to his claims for

declaratory and injunctive relief and breach of contract. We first address Hickory Creek’s issues.

A. Inverse Condemnation

“Article I, Section 17 [of the Texas Constitution] provides: ‘No person’s property shall

be taken, damaged, or destroyed for or applied to public use without adequate compensation

being made, unless by the consent of such person . . . .’” Commons of Lake Houston, Ltd. v. City

of Houston, 711 S.W.3d 666, 675 (Tex. 2025) (quoting TEX. CONST. art. I, § 17(a)). “This

provision of the Texas Bill of Rights reflects that the ‘right to own, use, and enjoy one’s private

property is a fundamental right,’ . . . and ‘among our most cherished liberties . . . .’” Id.

(citations omitted) (quoting City of Baytown v. Schrock, 645 S.W.3d 174, 179 (Tex. 2022) (citing

Hearts Bluff, 381 S.W.3d at 476 (first quote));City of Houston v. Carlson, 451 S.W.3d 828, 830

(Tex. 2014) (second quote)). “But the clause does not prohibit the government from taking,

damaging, destroying, or applying private property; it instead requires that any such action be for

a public use and that the government adequately compensate the owner for the property taken.”

Id. (citing KMS Retail Rowlett, LP v. City of Rowlett, 593 S.W.3d 175, 181 (Tex. 2019)). “The

clause thus seeks to balance a citizen’s private-property rights against the ‘inexorable’ ‘demands

of progress’ and the need to encourage ‘public improvements’ by requiring ‘all citizens [to share]

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equally in the cost of progress.’” Id. at 675–76 (alteration in original) (quoting DuPuy v. City of

Waco, 396 S.W.2d 103, 106 (Tex. 1965)).

“Governmental immunity protects [Hickory Creek] against—and deprives the courts of

jurisdiction over—this suit unless that immunity has been waived.” Id. at 675 (citing Carlson,

451 S.W.3d at 830). “The Texas takings clause—Article 1, Section 17 of the Texas

Constitution—waives [Hickory Creek’s] immunity and establishes the courts’ jurisdiction, but

only if [Mastellar] has alleged a legally viable takings claim.” Id. (citing Carlson, 451 S.W.3d at

830).

“An owner who believes the government has taken its property may bring an ‘inverse’

condemnation claim to recover adequate compensation.” Id. at 676 (quoting Kopplow Dev., Inc.

v. City of San Antonio, 399 S.W.3d 532, 536 (Tex. 2013)). “Inverse condemnation is ‘a cause of

action against a governmental defendant to recover the value of property which has been taken in

fact by the governmental defendant, even though no formal exercise of the power of eminent

domain has been attempted by the taking agency.’” Hearts Bluff, 381 S.W.3d at 476 (quoting

United States v. Clarke, 445 U.S. 253, 257 (1980)).

To prevail on an inverse-condemnation claim, the owner must plead and prove
that (1) the government engaged in affirmative conduct (2) that proximately
caused (3) the taking, damaging, destroying, or applying (4) of specific private
property (5) for a public use (6) without paying the owner adequate compensation
(7) and did so intentionally or with knowledge that the result was substantially
certain to occur.

Commons of Lake Houston, 711 S.W.3d at 676 (footnotes omitted) (citations omitted).

The parties here dispute the third element of the inverse-condemnation cause of action—

essentially, whether Mastellar properly pleaded a compensable taking under these facts. Hickory
8
Creek claims there was no taking because the Easement Agreement between the parties was a

blanket easement, “authoriz[ing] construction of water lines on any 20-foot-wide area of land

crossing Mastellar’s land, as long as the use is reasonable and necessary,” including the

installation of the neighbor’s water line outside the twenty-foot area surrounding the original

water line installed for Mastellar. Mastellar, on the other hand, claims that the Easement

Agreement was not a blanket easement and was granted only for Mastellar’s purposes, thus the

placing of the neighbor’s water line outside the area of the previous line constituted inverse

condemnation.

In determining whether the facts pleaded by Mastellar constitute a taking, we must

construe the Easement Agreement.

1. Construing the Easement Agreement

“When construing the terms of an easement, courts deploy the rules of contract

interpretation and look to the easement’s express terms to determine its scope.” Sw. Elec. Power

Co. v. Lynch, 595 S.W.3d 678, 686 (Tex. 2020) (citing DeWitt Cnty. Elec. Coop., Inc. v. Parks, 1

S.W.3d 96, 100 (Tex. 1999)). “As in contract interpretation cases, courts look to all of the

language in the easement and harmonize its terms to give effect to all of the provisions.” Id.

(citing Parks, 1 S.W.3d at 101).

While we are to “construe a contract in a manner that gives ‘effect to the parties’ intent

expressed in the text,’ . . . we may also take into account ‘the facts and circumstances

surrounding the contract’s execution.’” Reider v. Woods, 603 S.W.3d 86, 94 (Tex. 2020)

(quoting Americo Life, Inc. v. Myer, 440 S.W.3d 18, 22 (Tex. 2014)). “In that vein, Texas courts

9
have long recognized that, under appropriate circumstances, ‘instruments pertaining to the same

transaction may be read together to ascertain the parties’ intent, even if the parties executed the

instruments at different times and the instruments do not expressly refer to each other.’” Id.

(quoting Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 840 (Tex. 2000)).

“Where appropriate, ‘a court may determine, as a matter of law,’ that multiple separate contracts,

documents, and agreements ‘were part of a single, unified instrument.’” Id. (quoting Fort Worth

Indep. Sch. Dist., 22 S.W.3d at 840). “In determining whether multiple agreements are part and

parcel of a unified instrument, a court may consider whether each written agreement and

instrument was ‘a necessary part of the same transaction.’” Id. (quoting Bd. of Ins. Comm’rs v.

Great S. Life Ins. Co., 239 S.W.2d 803, 809 (Tex. 1951)). “But when construing multiple

documents together, courts must do so with caution, bearing in mind that tethering documents to

each other is ‘simply a device for ascertaining and giving effect to the intention of the parties and

cannot be applied arbitrarily and without regard to the realities of the situation.’” Id. at 94–95

(quoting Miles v. Martin, 321 S.W.2d 62, 65 (Tex. 1959)).

Here, the Easement Agreement and the Service Agreement were both executed by

Mastellar and his wife. The Mastellars signed the Service Agreement on December 16, 2016,

and Hickory Creek approved it on February 10, 2017, the same date the Mastellars signed the

Easement Agreement and it was notarized. The Hickory Creek representative who signed the

Service Agreement appears to be the same person who notarized the Easement Agreement. Both

agreements deal with the provision of water services to the Mastellars. While neither agreement

specifically references the other, the Service Agreement does address easements, requiring

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Mastellar to grant Hickory Creek “any easements of right-of-way for the purpose of [providing

water service] . . . which may be deemed necessary by the District to extend or improve service

for existing or future Customers, on such forms as are required by the District.” Under these

circumstances, we conclude it was proper for the trial court to consider the Service Agreement

together with the Easement Agreement in “ascertaining and giving effect to the intention of the

parties.” Id. at 95 (quoting Miles, 321 S.W.2d at 65); see Parks, 1 S.W.3d at 101–02

(considering together an easement agreement and a separate service agreement “in determining

the intent of the parties” under the easement agreement).

The easement granted to Hickory Creek by Mastellar anticipated the “placing, installing,

constructing, . . . rebuilding, removing, and relocating [of] water lines.” Although there is no

metes and bounds description specifying the location of the easement on the property, the

Easement Agreement does define the width of the easement as being twenty feet. Looking to the

Service Agreement for the parties’ intent regarding the location of the easement, we find

Mastellar’s interlineation that states, “SPECIFIC EASEMENT NOT BLANKET EASEMENT.”

Mastellar initialed that handwritten provision, and Hickory Creek’s representative later

“Approved and Accepted” the Service Agreement.

We reject Hickory Creek’s argument that the easement is a blanket easement, that is,

“[a]n easement without a metes and bounds description of its location on the property,” 2 Atmos

2
“Blanket easements have been commonly used in Texas history, particularly for long route utility projects such as
pipelines and electric power lines. The purpose of a blanket easement is for the practical convenience of the
easement holder to alter the exact location of the lines during construction.” Atmos Energy, 598 S.W.3d at 446
(quoting 2 TEX. PRAC. GUIDE REAL ESTATE TRANS. § 15:19). “The flip side of the flexibility provided for a blanket
easement is the loss of control of exclusive use which the landowner otherwise enjoys.” Id. at 447 (quoting 2 TEX.
PRAC. GUIDE REAL EST. TRANS. § 15:19).
11
Energy Corp. v. Paul, 598 S.W.3d 431, 446 (Tex. App.—Fort Worth 2020, no pet.) (alteration in

original) (quoting First Am. Title Ins. Co. of Tex. v. Willard, 949 S.W.2d 342, 344 n.2 (Tex.

App.—Tyler 1997, writ denied)), which would result in Hickory Creek’s “right to lay an

unlimited number of pipelines as it may reasonably demand across the entirety of [Mastellar’s]

property,” id. at 447. Due to significant wording differences between the agreements at issue

here and the one examined in Atmos Energy, we discount the value of Atmos Energy as

precedent here. The contract in Atmos Energy involved a global description of the servitude, as

did the agreement between Hickory Creek and Mastellar, but the Atmos Energy contract

apparently did not have a provision specifying the width of the easement, nor did it have an

empty blank intended for filling in the specific description of the location of the easement.

The presence of a defined width in the Easement Agreement indicated the parties’ intent

to limit Hickory Creek to a twenty-foot-wide easement for the purpose of providing water

services, the location of which was determined by Hickory Creek’s placement of Mastellar’s

water line. That intent is further reflected in Mastellar’s indication in the Service Agreement that

the easement was to be a specific easement rather than a blanket easement.

2. Application to Inverse Condemnation Claim

We have concluded that the parties’ Service Agreement and Easement Agreement

granted to Hickory Creek a twenty-foot-wide easement on Mastellar’s property for the provision

of utility services. Mastellar’s live pleading alleged that Hickory Creek entered onto his property

without contacting him; removed a gate; damaged a fence, his property, and his hay crop; and,

without his authorization and outside the boundaries of the easement, “dug up portions” of his

12
property that he planned to develop for his own access purposes, to provide service to his

neighbor, preventing his development plans.

Hickory Creek contends that Mastellar’s allegations are insufficient because they are akin

to diminution-in-value claims by businesses when one of several access points to a parking lot is

modified or even cut off. See, e.g., City of San Antonio v. TPLP Off. Park Props., 218 S.W.3d

60, 66–67 (Tex. 2007) (per curiam) (“Closing an access point and merely causing diversion of

traffic or circuity of travel does not result in a compensable taking.”). Mastellar, though, asserts

something different. He asserts that Hickory Creek put the new waterline in the area he told

Hickory Creek he intended to develop, and by putting the waterline there, Hickory Creek has

prevented him from developing that acreage. Thus, Mastellar’s allegations are in the nature of a

physical taking. See Tex. Dep’t of Transp. v. Self, 690 S.W.3d 12, 30 n.25 (Tex. 2024) (listing a

case involving a drainage ditch among examples of physical takings). Indeed, Mastellar asserts,

in inverse condemnation, that which has previously been the subject of direct condemnation. See

Coastal Indus. Water Auth. v. Celanese Corp. of Am., 592 S.W.2d 597, 600 (Tex. 1979) (“The

Authority’s statement alleged that it wished to acquire the water line easement ‘for the

transportation of water and other facilities and uses incidental thereto or in connection [with its

water system]’” sufficiently alleged “the necessity of the taking” under the condemnation

statutes of the time.). Hickory Creek’s belief that it had been granted a blanket easement does

not change things. See Self, 690 S.W.3d at 32. If the government’s subjective belief could

defeat an inverse condemnation claim, then “the government could bulldoze anyone’s house

without compensation simply by asserting a belief—even a wholly unsupported one—that it had

13
the legal right to do so, regardless of whether that assertion was later withdrawn or disproved.”

Id.

Because we have determined that the Easement Agreement was not a blanket easement

granting Hickory Creek access to Mastellar’s entire property, we conclude Mastellar properly

alleged a taking, and the trial court properly denied Hickory Creek’s plea to the jurisdiction on

that cause of action. See Commons of Lake Houston, 711 S.W.3d at 676.

We overrule Hickory Creek’s first issue.

B. Negligence under the Texas Tort Claims Act

As discussed above, the Utility District enjoys sovereign immunity unless that immunity

has been waived by the Texas Legislature. The Legislature has waived immunity under the

TTCA in certain circumstances by providing that “[a] governmental unit in the state is liable for

. . . property damage . . . proximately caused by the wrongful act or omission or the negligence

of an employee acting within his scope of employment if . . . the property damage . . . arises from

the operation or use of a motor-driven vehicle or motor-driven equipment.” TEX. CIV. PRAC. &

REM. CODE ANN. § 101.021(1)(A); see TEX. CIV. PRAC. & REM. CODE ANN. § 101.025.

Hickory Creek argues that Mastellar’s pleading was inadequate to invoke the immunity

waiver of the TTCA. We disagree. Mastellar claimed, in his live pleading, that Hickory Creek

employees entered onto his property “and engaged in wrongful or negligent acts or omissions in

connection with the installation of [his neighbor’s water line] and the same proximately caused

severe damage to [his] [p]roperty, crops, and personal property.” Mastellar alleged that the

damage “arose in connection with the employees’ use or operation of trucks, excavators, and

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other motor-driven vehicles and equipment.” In connection with his TTCA claim, Mastellar

incorporated his previous allegations, which, as discussed above, included the entry onto his

property, damage to his fence, property, and hay crop, and digging up his property. With respect

to the use of motor vehicles, Mastellar specifically alleged that Hickory Creek “drove many

heavy vehicles and machines across [his] [p]roperty, thereby making ruts and damaging [his]

[p]roperty and the costal hay he was to harvest.”

We conclude these allegations sufficiently alleged Hickory Creek’s wrongful or negligent

acts arising in connection with the use of a motor-driven vehicle or equipment to establish

waiver of immunity and support the trial court’s denial of the plea to the jurisdiction. See, e.g.,

Rattray, 662 S.W.3d at 871–73 (collecting cases regarding the “operation or use” of motor-

driven vehicles or equipment).

We overrule Hickory Creek’s second issue.

C. Declaratory and Injunctive Relief

In his first cross-issue, Mastellar argues that the trial court erred when it granted Hickory

Creek’s plea to the jurisdiction regarding injunctive and declaratory relief against both Hickory

Creek and the HC Board.

1. The HC Board

“[S]tate agencies . . . are immune from suits under the [Uniform Declaratory Judgments

Act] unless the Legislature has waived immunity for the particular claims at issue.” Tex. Dept.

of Transp. v. Sefzik, 355 S.W.3d 618, 620 (Tex. 2011) (per curiam). However, “‘ultra vires suits

do not attempt to exert control over the state—they attempt to reassert the control of the state’

15
over one of its officials.” Phillips v. McNeill, 635 S.W.3d 620, 628 (Tex. 2021) (quoting City of

El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009)). Thus, ultra vires suits are seen as an

exception to sovereign immunity, Sefzik, 355 S.W.3d at 621, and “[i]t is . . . well settled that

immunity does not bar ultra vires suits against state officials,” Hidalgo Cnty. Water Improvement

Dist. No. 3 v. Hidalgo Cnty. Irrigation Dist. No. 1, 669 S.W.3d 178, 183 (Tex. 2023).

“An ultra vires suit requires a plaintiff to ‘allege, and ultimately prove, that the officer

acted without legal authority or failed to perform a purely ministerial act.’” Phillips, 635 S.W.3d

at 628 (quoting Heinrich, 284 S.W.3d at 372). “Action without legal authority occurs when ‘a

government officer with some discretion to interpret and apply a law . . . exceeds the bounds of

his granted authority or if his acts conflict with the law itself.’” Id. (quoting Hall v. McRaven,

508 S.W.3d 232, 238 (Tex. 2017) (plurality op.)).

Here, Mastellar claimed that the HC Board acted ultra vires by “approving the location

and installation” of a water line on his property “outside the area conveyed to [Hickory Creek]

via easement.” Similarly, Mastellar’s breach of contract claim alleged that Hickory Creek

breached the agreements by “unilaterally choosing and approving the location and installation of

the” neighbor’s water line outside the boundaries of the easement.

Even though ultra vires suits are not barred by governmental immunity, “a party may not

seek a declaratory judgment ‘only in an attempt to have the trial court decide its breach-of-

contract claim.’” Town of Flower Mound v. Rembert Enters., Inc., 369 S.W.3d 465, 475 (Tex.

App.—Fort Worth 2012, pet. denied) (quoting Tex. Nat. Res. Conservation Comm’n v. IT-Davy,

74 S.W.3d 849, 860 (Tex. 2002)). “[D]eclaratory-judgment suits against state officials seeking

16
to establish a contract’s validity, to enforce performance under a contract, or to impose

contractual liabilities are suits against the State” and “cannot be maintained without legislative

permission.” IT-Davy, 74 S.W.3d at 855, 856.

We agree with the HC Board that the crux of Mastellar’s argument on appeal is that his

neighbor’s line was installed outside of the twenty-foot easement he granted under the Easement

Agreement. Indeed, to reach the conclusion Mastellar seeks—that Hickory Creek “was not

authorized to steal the use of his land”—the trial court would have to construe the agreements

between the parties to determine whether Hickory Creek breached them or whether the HC

Board committed ultra vires acts. “Thus, [Mastellar’s] declaratory judgment claim is merely a

recast of its breach of contract claim, and immunity has not been waived.” Rembert Enters., 369

S.W.3d at 476 (citing City of Houston v. Williams, 216 S.W.3d 827, 829 (Tex. 2007)

(per curiam); IT-Davy, 74 S.W.3d at 860).

We conclude, then, that Mastellar’s declaratory judgment cause of action against the HC

Board was merely an attempt to “establish a contract’s validity, to enforce performance under a

contract, or to impose contractual liabilities” for which the HC Board’s immunity was not

waived. See IT-Davy, 74 S.W.3d at 855. Thus, the trial court properly granted the plea to the

jurisdiction on this cause of action.

2. Hickory Creek

As stated above, “[S]tate agencies . . . are immune from suits under the [Uniform

Declaratory Judgments Act] unless the Legislature has waived immunity for the particular claims

at issue.” Sefzik, 355 S.W.3d at 620. Mastellar’s declaratory judgment action against Hickory

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Creek sought declaration of the parties’ rights under the Easement Agreement and the Service

Agreement.

On appeal, Mastellar advances no argument that his breach of contract claim based on the

Easement Agreement was wrongly dismissed. Further, we determine below that his breach of

contract claim based on the Service Agreement was properly dismissed because the State did not

waive immunity for a breach of contract action on that type of contract. Because both of

Mastellar’s breach of contract claims were properly dismissed, there is no basis for declaratory

or injunctive relief on either contract, and Mastellar’s claims for declaratory and injunctive relief

against Hickory Creek were properly dismissed.

We overrule Mastellar’s first cross-issue.

D. Breach of Contract

In his second issue on cross-appeal, Mastellar claims the trial court erred when it granted

Hickory Creek’s plea to the jurisdiction as to his breach of contract claim. Mastellar notes that

his live pleading asserts that Hickory Creek’s general immunity from suit was waived because it

entered into the Service Agreement with him.

Section 271.152 of the Texas Local Government Code states,

A local government entity that is authorized by statute or the constitution to enter
into a contract and that enters into a contract subject to this subchapter waives
sovereign immunity to suit for the purpose of adjudicating a claim for breach of
the contract, subject to the terms and conditions of this subchapter.

TEX. LOC. GOV’T CODE ANN. § 271.152. A “[c]ontract subject to this subchapter” is “a written

contract stating the essential terms of the agreement for providing goods or services to the local

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governmental entity that is properly executed on behalf of the local governmental entity.” TEX.

LOC. GOV’T CODE ANN. § 271.151(2)(A).

The parties disagree here as to whether Mastellar provided any services to Hickory Creek

under the Service Agreement that would waive immunity with respect to Mastellar’s claim for

breach of contract. Mastellar argues the Service Agreement “require[d] Mastellar to provide

real, specific services that are not hypothetical and are affirmative in nature.” Specifically,

Mastellar claims the Service Agreement requires him to “(1) install, maintain, and test multiple

pieces of equipment and machinery on Mastellar’s land; (2) correct various plumbing practices

as [Hickory Creek] desires; (3) take various actions that comply with implemented rationing

programs; and (4) payment of a deposit, fees, and other charges to [Hickory Creek].”

The Texas Supreme Court has “taken a broad view of what ‘services’ encompasses,

[under the Local Government Contract Claims Act], holding that it ‘includes generally any act

performed for the benefit of another.’” Campbellton Rd., Ltd. v. City of San Antonio ex rel.

San Antonio Water Sys., 688 S.W.3d 105, 122 (Tex. 2024) (quoting San Antonio River Auth. v.

Austin Bridge & Rd., L.P., 601 S.W.3d 616, 629 (Tex. 2020)). “The only limitation our case law

imposes is that the services must provide more than a mere ‘indirect, attenuated benefit.’” Id.

(quoting San Antonio River Auth., 601 S.W.3d at 629).

The actions required of Mastellar under the Service Agreement do not include “services,”

as that term is defined, even broadly viewed, that inure to the benefit of Hickory Creek under

Section 271.151. The Service Agreement requires Mastellar, under certain circumstances, to

install thermal and/or pressure relief valves to prevent possible damage to his own “closed

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system” or to install backflow devices to prevent cross-connection that is prohibited by state

regulation. Mastellar has not explained how those acts provide any benefit to Hickory Creek.

Further, complying with any future rationing program is a contingent act—not an act that is

necessarily required by the Service Agreement—and even if it were, Mastellar has not explained

how his compliance would benefit Hickory Creek. Finally, Mastellar has not explained how

payment of a deposit, fees, and charges constitutes anything other than remuneration for the

goods and/or services he is to receive from Hickory Creek under the Service Agreement.

We agree with Hickory Creek that the Service Agreement does not require Mastellar to

“provide any meaningful goods or services” to Hickory Creek and instead “require[s] adherence

to protocols to protect the water system and the public.” Any benefit that inured to Hickory

Creek under the Service Agreement was too indirect and attenuated to qualify as services under

the Local Government Contract Claims Act. See Lubbock Cnty. Water Control & Improvement

Dist. v Church & Akin, L.L.C., 442 S.W.3d 297, 303 (Tex. 2014) (“When a party has no right

under a contract to receive services, the mere fact that it may receive services as a result of the

contract is insufficient to invoke chapter 271’s waiver of immunity. At best, such services are

only an ‘indirect’ and ‘attenuated’ benefit under the contract.”); Jonah Water Special Util. Dist.

v. White, No. 03-06-00626-CV, 2009 WL 2837649, at *3 (Tex. App.—Austin Aug. 31, 2009,

pet. denied) (mem. op.) (“The contract at issue here [(a service agreement for provision of water

services)] concerns the provision of services by a local government entity . . . to a member of the

public; thus, section 271.152 does not waive [the local government entity’s] immunity.”).

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We conclude that the Service Agreement between Hickory Creek and Mastellar does not

require the provision of any services of the type for which the Texas Legislature intended to

waive Hickory Creek’s immunity under the Local Government Contract Act. As a result,

Hickory Creek’s immunity was not waived as to Mastellar’s breach of contract claim, and the

trial court properly granted Hickory Creek’s plea to the jurisdiction on that claim.

We overrule Mastellar’s second cross-issue.

V. Conclusion

We affirm the trial court’s rulings on Hickory Creek and the HC Board’s plea to the

jurisdiction.

Jeff Rambin
Justice

Date Submitted: August 12, 2025
Date Decided: August 29, 2025

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